Don’t Look, Don’t Touch
That seems to be the rather depressing message from the European Court of Justice to websites that allow third parties to post content (e.g. the comments on this blog). Article 14 of the European eCommerce Directive says that those hosts are protected from liability for the content until they are aware of specific infringements of the law. Once aware, they must act expeditiously to deal with the problem. Usually that “awareness” will come in the form of a notice from the party whose rights are infringed, leading to the common “notice and takedown” process.
But in ruling on a trademark case between eBay and L’Oreal the Court has concluded that Article 14 protection doesn’t arise at all if the website does more than “providing that [hosting] service neutrally by a merely technical and automatic processing of the data provided by its customers” (para 113). The ruling agrees with an earlier case involving Google that a site can set terms and provide general information about its service, and be paid for it, without breaching this requirement, however an action such as “optimising the presentation of the offers for sale in question or promoting those offers” (para 116) would mean that the host was no longer a neutral participant and could lose Article 14 protection.
The Court also considered how the host might obtain “awareness” of an infringement and thereby lose protection. They confirm what has long been suspected: that a host can gain awareness “as the result of an investigation undertaken on its own initiative” (para 122). However they also expand the kind of awareness that will suffice: knowledge of a specific infringement is still sufficient to require expeditious action, but (if the illegality is of a kind that could lead to an award of damages) so is being “aware of facts or circumstances on the basis of which a diligent economic operator should have identified the illegality in question” (para 120).
This confirms a worry I expressed in our response to the recent UK Government consultation on defamation law: that life is getting increasingly hard for web hosts who actually want to police their own sites. If there is a risk that content posted by third parties may break UK civil law (e.g. defamation or copyright) then a host who chooses to check it will now have to be as good as a “diligent economic operator” at recognising illegality and dealing with it. A site that actively intervenes (for example by highlighting particular postings) will have to be even more careful, since that intervention may take them beyond the neutral service provision that the Directive protects.
Effective processes for dealing with complaints about websites have always been a good idea: it seems that rules and training for anyone doing self-policing of them may now be at least as important.
One of the material facts which distinguishes the eBay v L’Oreal judgment was that eBay paid for advertising with third parties (Google Adwords) for the fraudulent goods on third parties websites.
Although the eCommerce Directive provides the blanket protection for unaware hosting providers, it could be argued that the presentation of sale would still within the remit of the hosting provider as eBay paid for the external advertising that caused them to fall foul of the law.
Yup. I think that’s the “promotion” that the court may have had in mind in this case. However there’s a UK case from last year that suggests that merely giving a particular blog posting more prominence may be enough